Breiding v High Hopes Films, LLC

Annotate this Case

Download PDF

Breiding v High Hopes Films, LLC 2024 NY Slip Op 30135(U) January 12, 2024 Supreme Court, New York County Docket Number: Index No. 152385/2023 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 152385/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/12/2024 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: 33M PART HON. MARY V . ROSADO Justice - -- - -- -- - - -- - -----X KATHY BREIDING, INDEX NO. MOTION DATE Plaintiff, 15238512023 05/08/2023_ 001 MOTION SEQ. NO. · V· DECISION + ORDER ON MOTION HIGH HOPES FI LMS, LLC, DENNI S PILI ER E. Defendant. - -- - - -- - -- - - - -- -- - --.X The following e-filed documents, listed by NYSCEF document number (Motion 001) 3. 4, 5, 6, 7, 8 , 9, 10, 11, 12, 13, 14, 15 DISMISS were read on this motion to/for Upon the forego ing documents, Defendants Dennis Piliere a/k/a Dennis Cabrini ("Pilierc·•) and High Hopes Fi lms, LLC's (" HHF") (collectively, " Defendants") motion for an Order dismissing Plai111iff Kathy Brc iding' s ("Plaintiff") claims against them for failure to state a claim. is deni ed in its entirety. Plaintil1's cross-motion for an Order directing llIIF to appear in this action by an attorney, is granted. I. Background an d Proced ural H istory Defendant Pilicrc is a part time film director, SAG signatory producer and actor (NYSCEF Doc. 3 at p. l ). P iliere created Oefe ndant HHC "for the purposes of producing low budget independent films in which he and other ad hoc performers can demonstrate and advance their talents" (NYSCEF Doc. 3 at p. 8). Plaintiff alleges that she was occasionally employed by Pilicrc, through HHC, as an independent contractor to act in his lilms (NYSCEF Doc. 2 at ' l}. On April 24, 2023 Plaintiff brought the instant action against Ocfendants alleging sexual harassment and gender d iscrimination, retaliation under the New York State Human Rights I.aw (" NYSHRL") and New York Ci ty Human Rights Law ("NYCIIRL"), Intentional Infliction of 15238512023 BREIDING, KATHY vs. HIGH HOPES FILMS, LlC ET AL Motion No. 001 [* 1] 1 of 7 Pago 1 017 INDEX NO. 152385/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/12/2024 Emotional Distress, de famation, breach of contracl and tortious inte1ference with business relations (NYSCEF Doc. 2). Subscquenlly, on May 8. 2023 Defendanls,pro se, brought the instant motion to dismiss Plaintiff's Complaint for failure to state a claim (NYSCEF Doc. 3). 1 II. Discussion Pursuant to CPLR 3211 (a)(7), "fa] party may move lor judgment dismissing one or more causes of action asserted aga inst him on the ground that ... the plead ing fails to state a cause of action ...." In considering a motion pursuant to CPLR 321 l(a)(7) to dismiss a complaint for failure to state a cause of action, " the court must give the pleading a liberal construction, accept the facts alleged in the complaint to be true and anord the plaintiff the benefit of every possible favorable inforencc" (J.P. Morgan Sec. Inc. v Vigilant Ins. Co. 21 NY3d 324, 334 [20131). "rT}he sole criterion is whether the pleading states a cause of action, and therefore if from its four comers factual allegations are discerned wh ich if taken togelher can manifest any cause of action. a motion for dismissal must fail" (Kusher v King 126 AD2d 446, 467 [ I st Dept 1987]). a. Defendants' Motion to Dismiss Plaintiff's First Cause of Action for Sexual Harassment and Gender Discrimination is Denied It is well established that to state a claim for sexual harassment, a "plaintiff must show that (I) (they J belong to a protected group, (2) [they were] subject to unwelcome sexual harassment and (3) the harassment complained of was based on [lhcir,I sex" (Farrngia v North Shore Univ. Hosp., supra, 13 Misc 3d at 745). As PlaintifPs Complaint alleges lhat " Defendants discriminated against Plaintiff on the basis of her sex and gender by targeting her female characteristics for sexual harassment, and on account of her statns as a women altering the terms and conditions of her work. creating a hostile work environment. interfering with her ability 10 carry out her work duties, and 1 While Oefendams erroneously cite lo F'cdcral Rule of Civil Procedure 12(1>)(6), (he Court deems their motion l!S filed pursual\t lo CPLR 32 1l(a)(7). 15238512023 BREIDING, KAT HY Motion No. 001 [* 2] vs. HIGH HOPES FILMS. LLC ET AL 2 of 7 Page 2 of 7 INDEX NO. 152385/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/12/2024 ultimately tem1i nating her employment," Plaintiff has made sufficient allegations to state a claim for sexual harassment and gender discrimination . Accordingly, Defendants' motion to dismiss Plaintiff's First Cause of Action is denied. b. Defendants· Motion to Dismiss Plainti ff' s Second Cause of Action for Retaliation Under NYSHRL and NYCHRL is Denied In order to state a c laim for retaliation under the NYSHRL "a plaintiff must show that ( I) Ithey were] engaged in a protected activity, (2) [their] employer was aware that [they] participated in such activity. (3) [they] suffered an adverse employment action based upon (their] activity, and (4) there is a causal connection between the protected activity and the adverse action" (Herskowirz v Stale of New York, 2023 NY App. Div. Lexis 6990 I1st Dept 2023 I). Similarly, ·'to make out an un lawful retaliation claim under the NYCHRL, a plainti ff must show that (I) he or she engaged in a protected activity as that term is defined under the NYCHRI., (2) his or her employer was aware that he or she participated in such activity, (3) his or her employer engaged in conduct which was reasonably likely to deter a person from engaging in that protected activity, and (4) there is a causal connection between the protected acti vity and the alleged retaliatory conduct'· (Brightman v Prison Heulrh Serv.. Inc., I 08 /\D3d 739, 740 I 1st Dept 2013]). IJere, Plaintiff alleges in her Complaint that " Defendants retaliated against Plaintiff for complaining about discrimination, by redoubling their effortS 10 create a hostile work environment based upon sexual harassment, by auack ing and undermining her professional reputation, and by terminati ng her employment," resul ting in damages 10 Plaintiff (NYSCEF Doc. 2 at ~ 70, 81 ). Affording Plaintiff the benefit of every possible favorable inference, the Coun finds that Plaintiff has successfully stated claims for retaliation under both the NYSHRL and the 'NYCHRL. Accordingly, Defendants' motion to dismiss Plaintiffs Second Cause of Action is denied. 15238512023 BREIDING, KATHY vs. HIGH HOPES FILMS, LLC ET Al Motion No. 001 [* 3] 3 of 7 Page 3 of 7 INDEX NO. 152385/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/12/2024 c. Ocfcndants' Motion 10 Dismiss Plaintiff's Third Cause of Action for Intentional Infliction of Emotional Distress is Denied The First Department has held that •·r1Jo state a claim for intentional infl iction of emotional distress a party must allege ' (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress"' (Drimer v Zionisr Org. of Am. , 194 AD3d 641, 642 [1 st Dept 2021 ]) citing (Sco/lar v City of New York, 160 AD3d 140, 145-146 [ lsl Dept 20 18]). While the standard for outr ageous conduct is "strict," " rigorous," and "diflicult to satisfy," "that is not the case when there is a deliberate and malicious campaign of harassment or intimidation" (Scollar v City ofNew York, 160 AD3d 140, 146 II st Dept 20 181fintcrnal quotations omitted]). Here, Plaintiff's Complaint alleges that Defendants, knowing that Plaintiff was emotionally vulnerable and wi th the intention to cause her severe emotional distress, "purposely drew upon l)cfendant Pi liere' s status as a mental health professional to terrorize Plaintiff and worsen her mental health," resulling in, inter alia. extreme humiliation and mental anguish r.,ISYCEF Doc. 2 at 1-' 83, 86). Affording Plaintiff the benefit of every possible favorable inference, the Court finds 1ha1 Plaintiff has successfully si.ated a claim for intentional infliction of emotional distress. Accordingly, l)cfendants' motion to dismiss Plaintiffs Third Cause of Action is denied. d. Defendants' Motion to Dismiss Plaintiff's Fourth Cause or Action for Oefamation is Denied It is well established that "(t]o prove a claim for defamation, a plaintiff must show: ( I) a false Statement that is (2) published to a third party (3) without privilege or authorization, and that (4) causes harm, unless the statement is one ofthc types of publications actionable regardless of hann" (Step,111011 v Dow Jones & Co., Inc., 120 Al)3d 28, 34 l I st l)cpt 2014]). 152385/2023 BREIDING, KATHY vs. HIGH HOPES FILMS, LLC ET A L Motion No. 001 [* 4] 4 of 7 Page 4 of 7 INDEX NO. 152385/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/12/2024 Here, PlaintilT's Complaint alleges that Defendants "knowingly and maliciously and/or recklessly published false information about Plain ti Cf's acting and film producing skills to colleagues in the film industry, without privilege or authorization," intending to injure Plaintiff, and that "Defendant Piliere published fa lse information imputing unchastity to Plaintiff' (NYSCEF Doc. 2 at ~ 88-89). As statements imputing unchastity to a woman constitute defamation per se, in light of the foregoing, the Court finds that Plaintiff has successfully stated a claim for Defamation. Accordingly, Defendants' motion to dismiss Plaintiffs Fourth Cause of Action for failure to state a claim is denied. c. Defendants' Motion to Dismiss Plaintiff's Fifth Cause of Action for Breach of Contract is Denied To state a claim for breach of contract, "a plaintiff must allege: ( I ) the parties entered into a valid agreement, (2) plaintiff performed, (3) defendant failed to perform, and (4) damages" (VisionClzina ,'vfedia Inc. v Shareholder Represenlalive Servs.. U .C, 109 AD3 d 49, 58 [1st Dept 2013]). Plaintill's Complaint alleges that Plaintiff had enforceable verbal and wri tten contrncts with Defendants under which Plaintiff performed, that Defendants breached the contracts by tcnninating Plaintiff's services, and that Defendants breach caused Plaintiff to suffer monetary damages (NYSCEF Doc. 2 at 93-94). In light of the foregoing, the Court finds that Plaintiff has successfully stated a claim for breach of contract. Accordingly, Defendants· motion to dismiss Plaintiffs Fifth Cause of Action for failure to state a claim is denied. r. Defendants' Motion to Dismiss Plainti ff's Sixth Cause of Action forTortious Interference with Business Relations is Denied The First Department has held that " ltlo prevail on a claim for tonious interference with business relations in New York, a party must prove (I) that it had a business relationship with a 152385/2023 BREIDING, KATHY vs. HIGH HOPES FILMS, LLC ET AL Motion No. 001 [* 5] 5 of 7 Page 5 of 7 INDEX NO. 152385/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/12/2024 third party; (2) that the defendant knew of that relationship and intentionally interfered with it; (3) that the defendant ac1ed so lely out of mal ice or used improper or illegal means chat amounted to a crime or independent tort; and (4) that the defendant's interJerence caused injury co the relationship with the third party (Amara111h LLC vJP. Morgan Chase & Co., 7 1 AD3d 40, 47 Llst Dept 20091). Plaintifr s Complaint alleges that she had busi ness relations with colleagues in the film industry which were destroyed as a result of Defendants' interference (NYSCEF Doc. 2 at 97). Further Plainti ll's Complaint alleges that Defendants interfered wi1h Plaintiffs business relations with the so le purpose uf causing hann 10 Plai111ifT (Id.). In ligh1 of the foregoing, the Court finds 1hat Plaintiff has successfully slated a claim for Tonious Interference with Business Relations. i\ccordingly, Defendants' motion to dismiss Plaintiffs Sixth Cause of Action for failure to stale a clai m is denied. g. Plaintiff's Cross-Motion for an Order direc ti ng HHF lo Appear in this Action bv an Anornev js Granted CPLR 32J(a) slates that "a corporation or voluntary association shall appear by an attorney." Further, the First Department has held that, pursuant to CPI.R 32l (a). a corporate defendant may be properly held in default for failure to appear by an attorney (World on Col11mbu.1·. Inc. v l .. C.K. Restaurant Group, Inc., I 1st Dept 1999"1). As it is undisputed that l)cfendam HHF is an I.LC that has not appeared by an anorney, this mailer shall be stayed for 30 days to afford HHF a reasonable time t.o obtain and appear by counsel. Failure of 1-IIIF lo appear by counsel within 30 days will risk HH F being found in default. Accordingly, it is hereby, ORDERED that Defendants Dennis Pilierc a/k/a Dennis Cabrini and High !lopes Films, 1,1,C's motion Lo dismiss Plaintiff Kathy Breiding's Complaint for failure to state a claim, is denied in iL~ entirety; and it is further 15238512023 BREIDING. KATHY vs, HIGH HOPES FILMS, LLC ET AL Motion No. 001 [* 6] 6 of 7 Pago 6 of 7 INDEX NO. 152385/2023 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 01/12/2024 ORDERED that within 30 days of entry, Defendant High Hopes Films, LLC shall appear by counsel in this action. Failure of HIIF lo appear by counsel within 30 days will risk Ill!F hcing found in default; and it is further ORDERF.D that on or before /vfarch 5, 2024 all parties are directed to suhmit a proposed Preliminary Conference Order to the Court via e-mail to SFC-Part33-Clerk(a)nvcouns.gov. If the parties arc unable to agree to a proposed Preliminary Conference Order, the parties arc directed to appear for an in -person preliminary conference with the Court in Room 442, 60 Centre Street, on ~arch 6, 2024 at 9:30 a.m.; and it is fi.trther ORDERED that within ten (10) days of entry, counsel for Plaintiff shall serve a copy of this Decision and Order, with notice of entry, on Defendants; and it is further ORDERED that the Clerk of the Court is directed to enter judgment accordingly. This consti tutes the Decision and Order of the Court. 1112/2024 DATE CHECKOHE: N. MARY V. ROSADO, J.S.C. CASE DISPOSED GRANTED OENIEO NON-FINAL OlSPOSITlON x GRANTED IN P AR T APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK lF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPO&N'TMENT 152385/2023 BREIOING. KA THY vs. HIGH HOPES FILMS, LLC ET A L Motion No. 001 [* 7] x 7 of 7 OTHER D REFERENCE Page 7 of 7

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.